Chairman Nadler, Ranking Member Franks, and Members of the Subcommittee:

We are pleased to submit this statement for the record on behalf of the American Civil Liberties Union, its 53 affiliates and more than 500,000 members nationwide, to explain the ACLU’s concern about an issue of critical importance to us, to this Subcommittee of the Committee on the Judiciary, and to all Americans concerned about the unchecked abuse of executive power: reform of the state secrets privilege.

Over the years we have seen the state secrets privilege mutate from a common-law evidentiary rule that permits the government “to block discovery in a lawsuit of any information that, if disclosed, would adversely affect national security,”[1] into an alternative form of immunity that is increasingly being used to shield the government and its agents from accountability for systemic violations of the Constitution. Since September 11, 2001, the Bush administration has fundamentally altered the manner in which the state secrets privileged is used, to the detriment of the rights of private litigants harmed by egregious government misconduct, and at the sacrifice of the American people’s trust and confidence in our judicial system.

ACLU litigators challenging the Bush administration’s illegal policies of warrantless surveillance, extraordinary rendition, and torture have increasingly faced government assertions of the state secrets privilege at the initial phase of litigation, even before any evidence is produced or requested. Too often in these cases, courts accept government claims of risk to national security as absolute, without independently scrutinizing the evidence or seeking alternative methods to give our plaintiffs an opportunity to discover non-privileged information with which to prove their cases.

The untimely dismissal of these important lawsuits has undermined our constitutional system of checks and balances and weakened our national interest in having a government that is accountable to the people. The misuse of the privilege by the executive branch, coupled with the failure of the courts to exercise independent scrutiny over privilege claims, has allowed serious, ongoing abuses of executive power to go unchecked. Congress has the power and the duty to restore these checks and balances and we urge you to pass legislation to clarify judicial authority over civil litigation involving alleged state secrets.

HISTORY OF THE PRIVILEGE

It has been more than half a century since the Supreme Court formally recognized the common-law state secrets privilege in United States v. Reynolds, a case that both establishes the legal framework for accepting a state secrets claim and serves as cautionary tale for those judges inclined to accept the government’s assertions as valid on their face.[2] In Reynolds, the family members of three civilians who died in the crash of a military plane in Georgia sued for damages. In response to a discovery request for the accident report, the government asserted the state secrets privilege, arguing that the report contained information about secret military equipment that was being tested aboard the aircraft during the fatal flight.

Although the Supreme Court had not previously articulated rules governing the invocation of the privilege, it emphasized the privilege was “well established in the law of evidence,”[3] and cited treatises, including John Henry Wigmore’s Evidence in Trials at Common Law, as authority. Wigmore acknowledged that there “must be a privilege for secrets of state, i.e. matters whose disclosure would endanger the Nation’s governmental requirements or its relations of friendship and profit with other nations.”[4] Yet he cautioned that the privilege “has been so often improperly invoked and so loosely misapplied that a strict definition of its legitimate limits must be made.”[5] Such limits included, at a minimum, requiring the trial judge to scrutinize closely the evidence over which the government claimed the privilege:

Shall every subordinate in the department have access to the secret, and not the presiding officer of justice? Cannot the constitutionally coordinate body of government share the confidence? The truth cannot be escaped that a Court which abdicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to bureaucratic officials too ample opportunities for abusing the privilege.[6]
Noting that the government’s privilege to resist discovery of “military and state secrets” was “not to be lightly invoked,” the Reynolds Court required “a formal claim of privilege, lodged by the head of the department which had control over the matter, after actual personal consideration by that officer.”[7] Further, the Court suggested a balancing of interests, in which the greater the necessity for the allegedly privileged information in presenting the case, the more “a court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.”[8] Like Wigmore, the Reynolds Court cautioned against ceding too much authority in the face of a claim of privilege: “judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”[9]

Yet despite these cautions the Reynolds Court produced an ambiguous standard for making a judicial determination of whether the disclosure of the evidence in question poses a reasonable danger to national security,[10] and it sustained the government’s claim of privilege over the accident report without ever looking at it. While the Court allowed the suit to proceed using alternative non-classified information (testimony from the crash survivors) as a substitute for the accident report, the declassification of the report many decades later proved the folly in the Court’s unverified trust in the government’s claim. The accident report contained no national security or military secrets, but rather compelling evidence of the government’s negligence.[11]

The Supreme Court has not directly addressed the scope or application of the privilege since Reynolds. In the intervening years, the privilege has become unmoored from its evidentiary origins. No longer is the privilege invoked solely with respect to discrete and allegedly secret evidence; rather, the government now routinely invokes the privilege at the pleading stage, before any evidentiary disputes have arisen. Indeed, Reynolds’ instruction that courts are to weigh a plaintiff’s showing of need for particular evidence in determining how deeply to probe the government’s claim of privilege is rendered wholly meaningless when the privilege is invoked before any request for evidence has been made. Moreover, the government has invoked the privilege with greater frequency;[12] in cases of greater national significance;[13] and in a manner that seeks effectively to transform it from an evidentiary privilege into an immunity doctrine, thereby “neutraliz[ing] constitutional constraints on executive powers.”[14]

In particular, since September 11, 2001, the government has invoked the privilege frequently in cases that present serious and plausible allegations of grave executive misconduct. It has sought to foreclose judicial review of the National Security Agency’s warrantless surveillance of United States citizens in contravention of the Foreign Intelligence Surveillance Act, to foreclose review of the NSA’s warrantless data mining of calls and e-mails, and to foreclose review of various telecommunication companies’ participation in the NSA’s surveillance activities.[15] It has invoked the privilege to terminate a whistleblower suit brought by a former FBI translator who was fired after reporting serious security breaches and possible espionage within the Bureau.[16] And, of course, it has invoked the privilege to seek dismissal of suits challenging the government’s seizure, transfer, and torture of innocent foreign citizens.[17]

The proliferation of cases in which the government has invoked the state secrets privilege, and the lack of guidance from the Court since its 1953 decision in Reynolds, have produced conflict and confusion among the lower courts regarding the proper scope and application of the privilege.

In Tenet v. Doe, the Supreme Court clarified the distinction between the evidentiary state secrets privilege, which may be invoked to prevent disclosure of specific evidence during discovery, and the so-called Totten rule, which requires outright dismissal at the pleading stage of cases involving unacknowledged espionage agreements.[18] As the Court explained, Totten is a “unique and categorical . . . bar – a rule designed not merely to defeat the asserted claims, but to preclude judicial inquiry.”[19] By contrast, the Court noted, the state secrets privilege deals with evidence, not justiciability.[20] Nevertheless, some courts have permitted the government to invoke the evidentiary state secrets privilege to terminate litigation even before there is any evidence at issue.

There is substantial confusion in the lower courts regarding both when the privilege properly may be invoked, and what precisely the privilege may be invoked to protect. The Reynolds Court considered whether the privilege had been properly invoked during discovery, at a stage of the litigation when actual evidence was at issue.[21] Consistent with Reynolds, some lower courts have properly rejected pre-discovery, categorical assertions of the privilege, holding that the privilege must be asserted on an item-by-item basis with respect to particular disputed evidence.[22] Other courts, however, have permitted the government to invoke the privilege at the pleading stage, with respect to entire categories of information – or even the entire subject matter of the action – before evidentiary disputes arose.[23]

There is also a wide divergence among the lower courts regarding how deeply a court must probe the government’s claim of privilege, and what, exactly, the court must examine in assessing a privilege claim and its consequences. Notwithstanding Reynolds’ clear instruction that the judge has a critical and authoritative role to play in the privilege determination, many courts have held that the government’s state secrets claim must be afforded the most extreme form of deference.[24] Other courts properly have scrutinized the government’s privilege claim with more rigor – adopting a common-sense approach to assessing the reasonable risk of harm to national security should purported state secrets be disclosed.[25]

This confusion as to the proper judicial role plays out with particularly dire consequences when a successful claim of privilege results in dismissal of the entire lawsuit. Some courts correctly have held that where dismissal might result from a successful invocation of the privilege, the court must examine the actual evidence as to which the government has invoked the privilege before making any determination about the applicability of the privilege or dismissal.[26] Other courts have refused or declined to examine the allegedly privileged evidence, relying solely on secret affidavits submitted by the government.[27]

Legislative action to narrow the scope of the state secrets privilege and standardize the judicial process for evaluating privilege claims is needed to clear up the confusion in the courts and to bring uniformity to a too often flawed process that is increasingly denying justice to private litigants in cases of significant national interest.

THE ACLU CASES

The ACLU has brought several cases designed to challenge controversial government intelligence programs that have come to light through press leaks, through inadvertent disclosure, and through intentional admissions of high government officials. These cases serve more than just the narrow personal interests of the litigants; they serve the national interest in that they often seek declaratory relief and/or a judicial determination that the challenged government conduct is illegal and unconstitutional, and therefore must end. The misuse of the privilege to dismiss these cases at the pleading stage does damage to the body politic as a whole, and not just to the rights of the litigants.

EXTRAORDINARY RENDITION, TORTURE

Khaled El-Masri, a German citizen of Lebanese descent, was forcibly abducted while on holiday in Macedonia in late 2003. After being detained incommunicado by Macedonian authorities for 23 days, he was handed over to United States agents, then beaten, drugged, and transported to a secret CIA-run prison in Afghanistan. While in Afghanistan he was subjected to inhumane conditions and coercive interrogation and was detained without charge or public disclosure for several months. Five months after his abduction, Mr. El-Masri was deposited at night, without explanation, on a hill in Albania. El-Masri suffered this abuse and imprisonment at the hands of U.S. government agents due to a simple case of mistaken identity.

Mr. El-Masri’s ordeal received prominent coverage throughout the world and was reported on the front pages of the United States’ leading newspapers and on its leading news programs. In addition to widely disseminating Mr. El-Masri’s allegations of kidnapping, detention, and abuse, these news reports revealed a vast amount of information about the CIA’s behind-the-scenes machinations during Mr. El-Masri’s ordeal, and even about the actual aircraft employed to transport Mr. El-Masri to detention in Afghanistan. German and European authorities began official investigations of El-Masri’s allegations. Moreover, on numerous occasions and in varied settings, U.S. government officials have publicly confirmed the existence of the rendition program and described its parameters.

The government has acknowledged that the CIA is the lead agency in conducting renditions for the United States in public testimony before the 9/11 Commission of Inquiry. Christopher Kojm, who from 1998 until February, 2003 served as Deputy Assistant Secretary for Intelligence Policy and Coordination in the State Department’s Bureau of Intelligence and Research, described the CIA’s role in coordinating with foreign government intelligence agencies to effect renditions, stating that the agency “plays an active role, sometimes calling upon the support of other agencies for logistical or transportation assistance” but remaining the “main player” in the process.[28] Similarly, former CIA Director George Tenet, in his own written testimony to the 9/11 Joint Inquiry Committee, described the CIA’s role in some seventy pre-9/11 renditions and elaborated on a number of specific examples of CIA involvement in renditions.[29] Even President Bush has publicly confirmed the widely known fact that the CIA has operated detention and interrogation facilities in other nations, as well as the identities of fourteen specific individuals who have been held in CIA custody.[30]

On December 6, 2005, Mr. El-Masri filed suit against former Director of Central Intelligence George Tenet, three private aviation companies, and several unnamed defendants, seeking compensatory and punitive damages for his unlawful abduction, arbitrary detention, and torture by agents of the United States.[31] Mr. El-Masri alleged violations of the Fifth Amendment to the U.S. Constitution as well as customary international law prohibiting prolonged arbitrary detention; cruel, inhuman, or degrading treatment; and torture, which are enforceable in U.S. courts pursuant to the Alien Tort Statute.[32] Although not named as a defendant, the United States government intervened before the named defendants had answered the complaint, and before discovery had commenced, for the purpose of seeking dismissal of the suit pursuant to the evidentiary state secrets privilege. In a public affidavit submitted with the motion, then-CIA director Porter Goss maintained that “[w]hen there are allegations that the CIA is involved in clandestine activities, the United States can neither confirm nor deny those allegations,” and accordingly Mr. El-Masri’s suit must be dismissed.[33]

The district court held oral argument on the United States’ motion on May 12, 2006, and despite the wealth of evidence already in the public record, the United States’ motion to dismiss was granted that same day.[34] Mr. El-Masri thereafter appealed to the Court of the Appeals for the Fourth Circuit. On March 2, 2007, the court of appeals upheld the dismissal of Mr. El-Masri’s suit, holding that state secrets were “central” both to Mr. El-Masri’s claims and to the defendants’ likely defenses, and thus that the case could not be litigated without disclosure of state secrets.[35]

The district court held that “El-Masri’s private interests must give way to the national interest in preserving state secrets.” But no meaningful national interest was served by this decision. There is no national security interest served in having U.S. government agents kidnap, render, torture, abuse, and illegally detain the wrong person. To the contrary, the allegations questioned our government’s commitment to core values of American criminal law and international humanitarian law. In an amicus brief filed in support of El-Masri’s appeal to the Forth Circuit, ten former U.S. diplomats warned that denial of a forum for El-Masri would undermine U.S. standing in the world community and the ability to obtain foreign government cooperation essential to combating terrorism, and thereby undermine our national security.[36] Perhaps it should have been no surprise that on January 31, 2007 a German court issued arrest warrants for 13 unnamed CIA agents believed to have participated in the El-Masri abduction and rendition.[37] In cases that touch fundamental values and constitutional principles, courts must be empowered to look to the long-term national interests in devising a solution that protects both our national interests and the interests of justice for all.

The ACLU recently filed another federal lawsuit on behalf of five victims of the U.S. government's unlawful extraordinary rendition program. The lawsuit charges that Jeppesen Dataplan, Inc., a subsidiary of the Boeing Company, knowingly provided direct flight services to the CIA that enabled the clandestine transportation of Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi to secret overseas locations where they were subjected to torture and other forms of cruel, inhuman and degrading treatment.[38] On October 19, 2007 the government moved to intervene and filed a motion to dismiss based on CIA Director Michael Hayden’s formal invocation of the state secrets privilege as grounds for dismissal. The matter is currently pending in the district court.

NATIONAL SECURITY AGENCY WARRANTLESS SURVEILLANCE

In December of 2005 the New York Times revealed that shortly after the 9/11 attacks the NSA began conducting warrantless domestic eavesdropping in violation of the Foreign Intelligence Surveillance Act (FISA).[39] The Bush administration acknowledged approving this surveillance as part of a program it called the Terrorist Surveillance Program (TSP). Subsequent articles in the Times and USAToday alleged that major telecommunications companies “working under contract to the NSA” were also providing the domestic call data of millions of Americans to the government for “social network analysis.”[40]

The ACLU sued the NSA on behalf of a group of journalists, academics, attorneys and nonprofit organizations, alleging that their routine communication with individuals in the Middle East made them likely victims of the NSA’s warrantless wiretapping program.[41] The plaintiffs alleged the NSA program violated the Fourth Amendment, FISA, and other federal laws. They also alleged that they suffered real injury as a result of the NSA’s warrantless surveillance program because the program forced them to make other, more costly arrangements to communicate with clients, sources, and colleagues in order to maintain confidentiality. The government filed a motion to dismiss prior to discovery, arguing the matter could not be explored in litigation because evidence supporting the NSA program qualifies for the state secrets privilege. U.S. District Judge Anna Diggs Taylor correctly found that the ACLU’s challenge to the program could be made based solely on the government’s public acknowledgement of the warrantless wiretapping program and ruled the NSA program unconstitutional.

In July 2007, the Sixth Circuit Court of Appeals dismissed the case, ruling the plaintiffs in the case had no standing to sue because they did not, and because of the state secrets doctrine could not state with certainty that they had been wiretapped by the NSA.[42] Once again the interests of justice were not properly served by dismissal of this case because Americans were denied the chance to contest the warrantless surveillance of their telephone calls and e-mails when the appeals court refused to rule on the legality of the program. Indeed, if this decision stands no person could ever challenge a secret domestic surveillance program because evidence necessary to demonstrate standing falls under the protection of the privilege. This unfettered executive authority is untenable to our constitutional system of competing powers among the separate branches of government. In October 2007, the ACLU asked the Supreme Court of the United States to review the Sixth Circuit decision and we are awaiting a decision regarding whether they will accept the case.

NATIONAL SECURITY WHISTLEBLOWER

Sibel Edmonds, a 32-year-old Turkish-American, was hired as a translator by the FBI shortly after the terrorist attacks of September 11, 2001 because of her knowledge of Middle Eastern languages. She was fired less than a year later in March 2002in retaliation for reporting shoddy work and security breaches that could have had serious implications on our national security to her supervisors. Edmonds sued to contest her firing in July 2002.Rather than deny the truth of Edmonds’ assertions, the government invoked the state secrets privilege in arguing that her case raised such sensitive issues that the court was required to dismiss it without even considering whether the claims had merit. On July 6, 2004, Judge Reggie Walton in the U.S. District Court for the District of Columbia dismissed Edmonds' case, citing the government's state secrets privilege. The ACLU represented Edmonds in her appeal of that ruling.[43]

A few days before the appeals court heard Edmonds’ case, the Inspector General published an unclassified summary of its investigation of her claims.[44] The summary vindicated Edmonds. It stated that “many of [Edmonds’] allegations were supported, that the FBI did not take them seriously enough, and that her allegations were, in fact, the most significant factor in the FBI’s decision to terminate her services.”[45] The Inspector General urged the FBI to conduct a thorough investigation of Edmonds’ allegations. It stated that “the FBI did not, and still has not, conducted such an investigation.”[46] It is truly difficult to see how ignoring and suppressing a whistleblower’s complaint about security breaches within the FBI protects the national security.

In the appeals court, the government continued to argue that the state secrets privilege deprived the judiciary of the right to hear Edmonds’ claims. In fact, the appeals court closed the arguments for the case to the press and general public.[47] Even Edmonds and her attorneys were forbidden from hearing the government present part of its argument. In a one-line opinion containing no explanation for its decision, the appeals court agreed with the government and dismissed Edmonds’ case. Edmonds asked the Supreme Court to review her case, but it declined.[48]

CONCLUSION

In each of these instances, the government has sought dismissal at the pleading stage, and the privilege as asserted by the government and as construed by the courts has often permitted dismissal of these suits on the basis of a government affidavit alone – without any judicial examination of the purportedly privileged evidence and sometimes only after ex parte hearings. Accordingly, a broad range of executive misconduct has been shielded from judicial review after the perpetrators themselves have invoked the privilege to avoid adjudication. Employed as it has been in these cases, the privilege permits the executive to declare a case nonjusticiable – without producing specific privileged evidence, without having to justify its claims by reference to those specific facts that will be necessary and relevant to adjudicate the case, and without having to submit its claims to even modified adversarial testing. These qualitative and quantitative shifts in the government’s use – and the courts’ acceptance – of the state secrets privilege warrant legislative action to correct this imbalance of power and rein in unconstitutional executive practices that are injurious to the health of a democratic society.

RECOMMENDATIONS

The ACLU recommends that Congress exercise its constitutional authority and pass legislation that narrows the state secrets privilege to its common-law roots as a privilege over evidence rather than justiciability. We recommend that Congress require courts to exercise independent judicial review over all government state secrets claims. At a bare minimum the legislation must require the government to present all evidence over which it is claiming a privilege to the court, in camera, for an independent assessment of whether disclosure of the evidence would reasonably pose a significant risk to national security.

Courts have long experience responsibly handling national security information in criminal cases involving terrorism and espionage, and there is no reason to suggest courts will not be just as reasonable in fulfilling their obligations in civil cases. Congress should look to the Classified Information Procedures Act as a successful model that has both protected the national security and the rights of individuals in adversarial proceedings against the government for more than twenty years.[49] CIPA not only establishes procedures, now tested, for handling classified information in an adversarial process, it also correctly shifts the burden that results from the government’s withholding of evidence to the government where it belongs. The balancing test under CIPA holds that our collective national interest in protecting the rights of an individual the government seeks to deprive of his liberty outweighs the government’s interest in pursuing its criminal justice mission or protecting its secrets. This is the appropriate balance because the government is in the best position to weigh the competing risks and come to a determination whether protecting its secret is more or less important than prosecuting the individual, and placing the burden on the government is the only way to compel it to make that choice. While not every tort case will implicate issues of collective national interest, Congress should direct the courts to consider broader interests of justice in those cases that involve torture in addition to torts.

Where particular judges feel they are not competent to make decisions on issues concerning national security claims, they should be authorized to appoint special masters to assist them in their analyses. Congress should recognize, however, that centuries of American jurisprudence have demonstrated the strength of the adversarial process in reaching decisions on matters of law and fact, and to the extent possible the adversarial process should be maintained. Congress should consider whether appointing a cleared Guardian ad Litem, who would represent the interests of the adverse party, or better yet, providing appropriate security clearances to counsel to participate in the review of the privileged material, would serve as a more effective means of ensuring that litigant’s rights are best protected and the most just result is achieved.

Where the courts do find that disclosure of privileged evidence would reasonably pose a significant risk to national security, they should be directed to follow CIPA procedures in redacting, summarizing, substituting, and/or stipulating to the facts dispute. These procedures will ensure the litigation can proceed to a just result unless the court determines the government is unable to present specific privileged evidence that establishes a valid defense.

10. Id, at 8 (“The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.”).

12. Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham L. Rev. 1931, 1939 (2007) (“The Bush Administration has raised the privilege in twenty-eight percent more cases per year than in the previous decade, and has sought dismissal in ninety-two percent more cases per year than in the previous decade.”)

13. Editorial, Too Many Secrets, N.Y. Times, Mar. 10, 2007, at A12, available at: http://www.nytimes.com/2007/03/10/opinion/10sat2.html (“It is a challenge to keep track of all the ways the Bush administration is eroding constitutional protections, but one that should get more attention is its abuse of the state secrets doctrine.”).

14.Note, The Military and State Secrets Privilege: Protection for the National Security or Immunity for the Executive?, 91 Yale L.J. 570, 581 (1982).

25.See, e.g., In re United States, 872 F.2d at 475 (“[A] court must not merely unthinkingly ratify the Executive’s assertion of absolute privilege, lest it inappropriately abandon its important judicial role.”); Ellsberg, 709 F.2d at 60 (rejecting claim of privilege over name of Attorney General who authorized unlawful wiretapping, explaining that no “disruption of diplomatic relations or undesirable education of hostile intelligence analysts would result from naming the responsible officials”); Hepting, 439 F. Supp. 2d at 995 (holding that “to defer to a blanket assertion of secrecy” would be “to abdicate” judicial duty, where “the very subject matter of [the] litigation ha[d] been so publicly aired”); Al-Haramain, 451 F. Supp. 2d at 1224 (rejecting government’s overbroad secrecy argument, stating that “no harm to the national security would occur if plaintiffs are able to prove the general point that they were subject to surveillance . . . without publicly disclosing any other information”).

27.See, e.g., Sterling, 416 F.3d at 344 (finding “affidavits or declarations” from government were sufficient to assess privilege claim even where asserted to sustain dismissal, and holding that in camera review of allegedly privileged evidence not required); Black, 62 F.3d at 1119 (examining only government declarations); Kasza, 133 F.3d at 1170 (same).

44. U.S. Department Of Justice Office Of Inspector General, A Review Of The FBI’s Actions In Connection With The Allegations Raised By Contract Linguist Sibel Edmonds, (Unclassified Summary, January 2005).